Cobra Construction Co.

National Labor Relations Board - Board Decisions

Dec 12, 1994

315 N.L.R.B. 723 (N.L.R.B. 1994)

723
315 NLRB No. 106
COBRA CONSTRUCTION CO.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 The General Counsel excepts, arguing, among other things, that
the judge erred by not finding that employees Williams and Ben-
jamin were engaged in protected concerted activity about September
14, 1993, when they asked the Respondent whether they were being
paid prevailing wage rates. We agree that Williams and Benjamin
were engaged in protected concerted activity by this conduct, which
the Respondent concedes, and which the judge appears implicitly to
find. We further find, however, that assuming that the General Coun-
sel established a prima facie case that Williams and Benjamin were
laid off because of their protected concerted activity, the Respondent
established that it would have laid off both employees, in any event,
for lack of work.
1 All dates refer to 1993 unless otherwise specified.
Cobra Construction Company, Inc. and Charles D.
Williams. Case 22–CA–19464
December 12, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND COHEN
On July 29, 1994, Administrative Law Judge D.
Barry Morris issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief in opposition to the Gen-
eral Counsel’s exceptions.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Stephen J. Holroyd, Esq., for the General Counsel.
Robert T. Lawless, Esq. (Hedinger & Lawless), of Florham
Park, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Newark, New Jersey, on April 28,
1994. On a charge filed on September 20, 1993,1 a complaint
was issued on October 28, alleging that Cobra Construction
Company, Inc. (Respondent) violated Section 8(a)(1) of the
National Labor Relations Act (the Act). Respondent filed an
answer denying the commission of the alleged unfair labor
practice.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of
business in North Arlington, New Jersey, has been engaged
as a general contractor in the construction industry, doing
commercial and industrial construction. During the 12-month
period preceding the issuance of the complaint Respondent
purchased and received at its New Jersey facility goods val-
ued in excess of $50,000 directly from points located outside
the State of New Jersey. Respondent admits, and I so find,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In 1993 Respondent was awarded a contract with the
Union City, New Jersey School District to renovate and re-
furbish five of the district’s schools. Charles Williams and
Edward Benjamin were hired by Respondent in early August
1993. While they were initially hired to perform demolition
work, they soon began doing carpentry work and therefore
their wages were increased to $23.33 per hour.
On September 14 or 15, Williams and Benjamin spoke
with the two owners of Respondent, Salvatore DiBlasi and
Giorgio Burgagni. They first inquired into their status, asking
if they were listed as carpenters on Respondent’s payroll. On
being informed that they were carpenters they asked if they
were being paid at the prevailing wage rate. Williams and
Benjamin testified that DiBlasi responded that they were
being paid the prevailing wage and offered to retrieve the
prevailing wage list from the job trailer to show them.
DiBlasi testified that when they asked whether they were
being paid the prevailing wage, he responded:
Yes, you are. . . . Check your paystubs. . . . You
have the hourly rate on your paystubs . . . and besides
that, if you really want to double check that, down at
the trailer I have posted in the trailer the prevailing
wage rate.
Williams testified that at the end of the conversation
Burgagni said ‘‘bring their check back. They don’t work for
us no more.’’ Similarly, Benjamin testified that at the end of
the conversation Burgagni said ‘‘bring our checks . . . be-
cause we are fired. We don’t work for them anymore.’’ Both
Williams and Benjamin testified that no reason was given for
their termination. DiBlasi denied that Burgagni participated
in the conversation and specifically denied that Burgagni
made any comment about bringing their paychecks or that
Williams and Benjamin no longer worked for Respondent .
DiBlasi testified that the conversation took place on Sep-
tember 14 and that Williams and Benjamin were laid off the
following day. When asked why the two were laid off,
DiBlasi replied ‘‘because their work was winding down. . . .
They were working on the wall at the Robert Walters
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
School, and when that portion of the work was ended, that’s
when we laid them off.’’ The record also shows that two
other carpenters, Fiedel and Asberry, were laid off on Sep-
tember 13. Fiedel had been employed by Respondent prior
to Williams and Benjamin being hired and it was Fiedel who
recommended that the two contact Respondent for employ-
ment.
B. Discussion and Conclusions
The record indicates that both Williams and Benjamin
were working as carpenters and were being paid the prevail-
ing rate. On September 14 or 15 Williams and Benjamin
asked DiBlasi and Burgagni whether they were being paid
the prevailing rate. DiBlasi told them that they were being
paid the prevailing rate and they could verify that by looking
at the sheet, which was located in the trailer. While Williams
and Benjamin testified that Burgagni told them at that time
that they should take their checks and that they were fired,
DiBlasi denied that Burgagni even participated in the con-
versation. During cross-examination Benjamin conceded that
in the affidavit which he provided to the Board he stated that
Burgagni ‘‘didn’t say anything.’’ Accordingly, I credit
DiBlasi’s testimony that it was the day following the con-
versation that the two were advised that they were laid off
because of lack of work.
One of the elements in determining whether the General
Counsel has made a prima facie showing is whether it has
been demonstrated that animus exists on the part of Re-
spondent. See Salem Paint, Inc., 257 NLRB 336, 339–340
(1981). No such showing has been made in this record. Wil-
liams and Benjamin asked Respondent’s owners whether
they were being paid at the prevailing rate. DiBlasi re-
sponded that they were being paid at the prevailing rate and
told them to check their paystubs and also offered that they
could look at the prevailing rate schedule which was posted
in the trailer. There is no indication in the record that Wil-
liams and Benjamin were not being paid the prevailing rate.
No reason is given by the General Counsel why the question
would have motivated Respondent to terminate the two em-
ployees, especially since it appears that the two were being
paid at the prevailing rate. Accordingly, I find that the Gen-
eral Counsel has not made a prima facie showing to support
the inference that protected conduct was a motivating factor
in the Employer’s decision.
Even if I were to have found that the General Counsel did
make a prima facie showing, I believe that Respondent has
satisfied its burden of demonstrating that the ‘‘same action
would have taken place even in the absence of the protected
conduct.’’ Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Two other employees had already been laid off on
September 13, including Fiedel, who had been hired prior to
Williams and Benjamin and who had recommended that they
apply for employment with Respondent. In addition, the
record shows that by September 15, total carpenter hours had
declined dramatically. Thus, for the weeks of August 23 and
September 1 there were 231 and 248 hours worked, respec-
tively. Total carpenter hours declined to 180 for the week of
September 6, 138 for the week of September 13, and 15 for
the week of September 20. Accordingly, even had a prima
facie showing been made, I believe that Respondent has sat-
isfied its burden under Wright Line, supra. I conclude, there-
fore, that the complaint should be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has not engaged in the unfair labor practice
alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed.